NLRB Resurrects Ambush Union Election Rules

In a widely anticipated move, the National Labor Relations Board (NLRB) announced on February 5, 2014 that it was again proposing revised union election rules to dramatically shorten the timeframe to conduct union elections. According to the NLRB, the proposed rules are virtually identical to the changes that the NLRB originally proposed in June of 2011 and adopted in November of 2011. The 2011 proposed changes were challenged by various employers and employer groups as unlawful, and the District of Columbia District Court invalidated the proposed changes in May 2012. The appeal of that ruling was put in abeyance in February 2013, pending the Supreme Court’s Noel Canning decision on the NLRB’s broader lack of quorum issues.

Following the full Senate confirmation of all 5 NLRB members late last year, the NLRB dropped its appeal and withdrew the 2011 proposed rule, setting the stage for the newly proposed rule announced in a press release on February 5, 2014. The new rule was published the next day, on February 6, 2014, and is available here. The NLRB has invited comments on its proposed rule changes. The NLRB will hold a public hearing on the issue during the week of April 7, 2014. Additionally, while the NLRB said it will consider the 65,000 public comments previously submitted in 2011, interested parties may submit comments on the proposed rule changes until April 14, 2014.

Essentially, the NLRB’s proposed rule changes will make it much harder for employers to defeat a union in an election. The proposed rule would wreak havoc with the current union election process as it dramatically shortens the timeframe between the filing of a union election petition and the election. Some of the major changes proposed include the following:

Elections are expected to occur within 10 to 21 days after a petition is filed rather than the current 42-day time period.

Most disputes about issues such as which employees are eligible to vote in an election, including whether an employee is a statutory supervisor and part of management and therefore ineligible to vote, will now be left until after the election is over instead of being addressed before the election.

A pre-election hearing to resolve any disputes about which job classifications should be covered by the election and whether the election will include multiple employer locations will also occur much faster, usually within 7 days of the filing of a petition instead of the current practice of holding these hearings within 14 days of the filing of a petition.

Employers will be required to provide the union involved in a petition with a list of its employees, work location, shift and job classification by the time of the pre-election hearing.

Once the election has been scheduled by the NLRB, employers will have only 2 days, rather than the current 7-day period, to give the union an alphabetized list of all voters that has the voters’ home address, email address, and phone number.

Finally, any disputes about the election must be heard by the appropriate regional NLRB office within 14 days of the election, and appeal to the NLRB will be discretionary, instead of mandatory.

It is difficult to understand the need for these changes. Unions have been winning over 60% of all union representation elections for most of this century. In fiscal year 2013, unions won 64% of all union elections conducted, and for the past 4 years, elections were held in a median of 38 days after the filing of a petition.

John Kline (R-MN), Chairman of the House Education and the Workforce Committee, and Phil Roe (R-TN), Chairman of the Subcommittee on Health, Employment, Labor and Pensions, have already denounced the NLRB’s proposed rule in a press release. They stated that “this ambush election scheme will make it virtually impossible for workers to make an informed decision in union elections,” and that “this flawed proposal will stifle employer free speech and worker free choice, and that the only entity that stands to gain is Big Labor.”

It is a virtual guarantee that there will be a legal challenge mounted by employers and various employer groups and trade associations once the NLRB issues a new final rule following the public comment period. Whether the NLRB will suspend implementation of the rule pending any legal challenges, or whether a court will enjoin implementation of the rule pending the final outcome of any legal challenges, is yet to be determined. Suffice it to say that the union elections and the NLRB are going to remain hot topics in the news and in the courts for the foreseeable future.

Takeaway: The NLRB’s proposed rules will make it much more difficult for employers to resist union organizing attempts. Employers will have very little time to train supervisors regarding how to lawfully deal with union organizing once an election petition is filed with the NLRB. More importantly, less time than ever before will be available to explain the facts about unions to employees so that employees can make a fully informed decision about whether a union is necessary or desirable in the workplace. Employers that want to remain union-free need to be proactive rather than reactive. Now is the time to start focusing on union prevention efforts and to make sure that supervisors are trained on the do’s and don’ts of dealing with union organizing. Stay tuned as we will keep you posted on the latest developments.

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About Neal Buethe

Neal Buethe is Head of Briggs and Morgan’s Employment, Benefits and Labor Section. Neal represents professionals, executives, for-profit employers, and non-profit organizations in employment and related matters. He is general counsel to several non-profit corporations, including religious organizations. For Neal’s full bio, click here.

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